Along with the motor vehicle requirement to be found guilty, the prosecutor must also show that you were traveling on a road/highway, which was open to the public. If you were not doing so, there might be grounds to dismiss based upon an illegal stop/seizure, or you could be entitled to a not guilty verdict at trial based on lack of evidence of one of the elements.

The law defines open to the public under MCL 257.625(1) as any “other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state.” So if you’re operating or were previously operating, and you’re now in a parking lot then the law still applies to your case. The same holds true if you pull into your own driveway; you can’t escape the law by ending up in a non-public parking spot. Parking lots and pit stops have been to be “generally accessible to motor vehicles” because vehicles are routinely permitted to enter for the purpose of driving and parking.

A viable defense may be available if an officer finds you in a restricted area or on private property such as your driveway, but he/she doesn’t have evidence that you were otherwise operating on a public road, which is open to the public. The prosecutor may argue that if you’re found sitting in your driveway with the engine on, well you were previously driving, or the engine is off, but the hood is still hot. While these are viable arguments by the prosecutor, the burden is on them to actually provide the proper proof of that operating on a highway open to the public.

It’s important to do a full analysis on the area, and who can enter, and who cannot enter, along with the hours of operation, and restrictions placed on the area. The more restrictions, and less access, the better the possible defense. It’s important to consider all posted signs, barriers or obstacles for entering. If you believe you were “seized” by an officer on private property, this could be a defense. ​